(영문) 서울행정법원 2014.4.17. 선고 2013구합29629 판결

On October 18, 2013, the defendant's disposition of demanding the payment of the amount of the Employment Insurance Fund refund against the plaintiff shall be revoked.

Reasons

1. Details of the disposition;

A. The Plaintiff worked at A.S. Co., Ltd. and retired on September 30, 2010.

B. On October 11, 2010, the Plaintiff filed an application for recognition of eligibility for job-seeking benefits with the head of the Seoul Regional Employment and Labor Agency. Upon obtaining recognition of eligibility for benefits from the head of the Seoul Regional Employment and Labor Agency, the Plaintiff received job-seeking benefits as follows.

A person shall be appointed.

C. From November 17, 2010 to December 16, 2010, the Plaintiff provided labor to Cho Jong-soo Co., Ltd. (hereinafter referred to as “ Cho Jong-soo”), from 17, 2010 to 17, and paid wages from each of the above companies during the period subject to recognition of unemployment (hereinafter referred to as “surinium”), but did not report the fact of providing labor during the period subject to recognition of unemployment, at each of the above companies’ attendance at the Seoul Employment and Labor Agency and at each of the applications for recognition of unemployment.

D. On February 17, 2011, the head of the Seoul Regional Employment and Labor Administration issued an order to return job-seeking benefits of KRW 1,775,510, the amount additionally collected, KRW 1,775,510, and the amount additionally collected, KRW 710,20, totaling KRW 4,261,220, and additional collection of the amount equivalent to the amount of job-seeking benefits (hereinafter “prior disposition”).

E. On March 24, 2011, the head of the Seoul Regional Employment and Labor Administration issued three-time notice of payment on KRW 4,261,220 on the Plaintiff’s KRW 4,261,220 (the payment deadline of KRW 1,420,420 on March 24, 2011; KRW 1,420,40 on April 23, 2011; KRW 1,420,40 on March 23, 201; and KRW 1,420,40 on May 23, 201). F, Seongbuk-gu, the Plaintiff’s domicile, was the jurisdiction of the Seoul Regional Employment and Labor Office; was changed to the jurisdiction of the Seoul Regional Employment and Labor Office on March 1, 2011.

G. On December 30, 201, the Defendant accused the Plaintiff on December 30, 201 that “from November 17, 2010 to December 16, 2010; from December 20, 2010 to January 17, 2011, the Defendant served on each of the walklon and did not report the employment; and that the Plaintiff violated Article 47 of the Employment Insurance Act, receiving unemployment benefits from the unemployment benefits of KRW 828,570 as stated in the above accusation.” The details of the Plaintiff’s fraudulent receipt of unemployment benefits stated in the above accusation are as follows.

A person shall be appointed.

H. On December 26, 2011, the Seoul Northern District Office attached the Plaintiff’s bank account to the Plaintiff’s bank account, and collected KRW 20,430,000,000,000 from the deposit claim of the said account on December 29, 2011. On October 29, 2012, the Plaintiff paid the remainder of KRW 1,725,490 (=1,745,920 – 20,430) to the Seoul Regional Employment and Labor Office (i.e., KRW 1,745,920) (i., KRW 1,745,920; KRW 20,430). On October 18, 2013, the Defendant issued a demand to the Plaintiff to pay the remainder of KRW 1,745,920,00,000 after subtracting the remainder of the amount collected from KRW 1,745,920,01.

【Facts without dispute over the basis of recognition, Gap’s evidence 1 through 4, Gap’s evidence 5-1 through 3, Eul’s evidence 1 through 14, the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

(1) Succession to defects

The Plaintiff’s illegal receipt of job-seeking benefits amounting to KRW 1,775,510 (i.e., KRW 1,775,510). If the Plaintiff’s illegal receipt of job-seeking benefits amounting to KRW 3,551,020 (i.e., KRW 100%) is combined, the Plaintiff’s additional collection would amount to KRW 3,551,020. On February 17, 2011, the Seoul Regional Employment Agency issued an order to return job-seeking benefits amounting to KRW 4,261,220 and a notice of additional collection equivalent to the amount of job-seeking benefits (the instant prior disposition). As such, the instant prior disposition was unlawful within the scope of KRW 710,200 (i.e., KRW 4,261,220 - KRW 3,51,020). Since the defect of the instant prior disposition was succeeded to the instant disposition, the instant disposition was also unlawful.

(2) Violation of the principle of trust protection.

The Plaintiff’s mother B sought an objection on March 201, 201, which was after the instant prior disposition, to the Seoul Regional Employment and Labor Office, but the investigator C, who was the person in charge, was absent. The instant disposition was unlawful against the principle of trust protection, since the Plaintiff paid the total amount of KRW 1,745,920 on the ground that “the amount of illegal receipt was KRW 1,745,920, or KRW 4,261,200, or KRW 4,261,200, or the said public official would receive and process the objection upon receipt of the objection.” The Plaintiff paid the total amount of KRW 1,745,920 on the ground that the Defendant issued the instant disposition after the lapse of one year thereafter.

B. Relevant statutes

It is as shown in the attached Form.

(1) As to the assertion of succession to defects

(A) Whether the prior disposition of this case is unlawful

1) According to Article 47(1) of the former Employment Insurance Act (amended by Act No. 10895, Jul. 21, 2011; hereinafter “former Employment Insurance Act”), an eligible recipient shall report to the head of an employment security office if he/she provides labor during a fixed period of unemployment. Pursuant to Article 61(2) of the former Employment Insurance Act and Article 80 Subparag. 1 of the Enforcement Decree of the Employment Insurance Act, where an eligible recipient fails to report the fact that he/she provided labor during a fixed period of unemployment, job-seeking benefits shall not be paid only for the period subject to verification of unemployment.

According to Article 62(1) of the former Employment Insurance Act, the head of an employment security office may order a person who has received job-seeking benefits by fraud or other improper means to return all or part of the job-seeking benefits, and in addition, an amount not exceeding the amount equivalent to the amount of job-seeking benefits received by such fraud or other improper means in accordance with the guidelines prescribed by Ordinance of the Ministry of Employment and Labor (i.e., the former Employment Insurance Act). “False or other improper means” generally refers to all unlawful acts committed by a person who is not eligible for benefits in order to pretend eligibility for benefits or to conceal the facts of employment or income generated, etc., and the act of a person who has obviously earned income does not report income prescribed by the Act to receive job-seeking benefits, and in light of the stay and language of the above provision, it does not change the requirements of return collection and additional collection under the former part (see Supreme Court Decision 201Du2270, Sept. 5, 2003).

2) Furthermore, we examine the amount of return collection and additional collection.

A) In cases of returning and collecting job-seeking benefits under the former part of Article 62(1) of the former Employment Insurance Act, in light of the language and text of Article 61(1) and (2) of the same Act, where job-seeking benefits that should not be paid were erroneously paid, the provision ordering the return of such erroneously paid job-seeking benefits. As such, the amount of the return and collection should not be paid.

However, pursuant to Article 61(2) of the former Employment Insurance Act and Article 80 subparag. 1 of the Enforcement Decree of the Employment Insurance Act, if an eligible recipient fails to report the fact that he/she provided labor during the period subject to unemployment recognition, job-seeking benefits shall not be paid only for the period subject to unemployment recognition. Thus, the amount of return collection for an eligible recipient who reported the fact of provision of labor during the period subject to unemployment recognition should be deemed the full amount of job-seeking benefits for

B) On the other hand, the additional collection under the latter part of Article 62(1) of the former Employment Insurance Act is a disciplinary punishment and the amount of additional collection under the statutory text is not more than the amount equivalent to the amount of job-seeking benefits paid by fraud or other improper means. In light of the fact that the amount of additional collection is equivalent to the amount of job-seeking benefits paid by an eligible recipient who has reported the fact of providing labor, i.e., the amount obtained by deducting the amount of job-seeking benefits that the eligible recipient would have paid when the eligible recipient reported the fact of providing labor from the amount of job

In full view of Articles 40(1)2, 43(1) and (2), and 44(1) and (2) of the former Employment Insurance Act, the head of an employment security office shall provide work for eligible beneficiaries during the period subject to recognition of unemployment.

Inasmuch as job-seeking benefits are paid by recognizing unemployment for a period in which a person is unemployed despite his/her death and ability, the amount of additional collection is below the amount of job-seeking benefits paid for the period during which the eligible recipient provided labor during the period subject to recognition of unemployment.

Meanwhile, according to Article 105(1) of the former Enforcement Rule of the Employment Insurance Act (amended by Ordinance of the Ministry of Employment and Labor No. 32, Sept. 16, 2011), the amount of additional collection under Article 62(1) of the Act shall be 100/100 of the amount of job-seeking benefits paid by false or other unlawful means. Accordingly, the amount of additional collection ultimately becomes the amount of job-seeking benefits paid by an eligible recipient for the period of employment

3) We examine the instant case. On November 22, 2010, when the Plaintiff reported that he/she had been present at the Korea Employment and Labor Agency in Seoul, the unemployment recognition date, and that he/she had been seeking reemployment, the Plaintiff failed to report the fact that he/she had provided his/her labor to the Choice during the period subject to unemployment recognition from November 17, 2010 to November 22, 2010, which is the period subject to unemployment recognition, to November 22, 2010. As such, the amount of returned and collected for the Plaintiff regarding the period subject to unemployment recognition is KRW 828,570 for the amount of job-seeking benefits paid for the period subject to unemployment recognition, and the amount additionally collected is KRW 17,550 for the amount of job-seeking benefits paid for the period subject to unemployment recognition (=828,570 x 6/28 days x less than 6/28 days, hereinafter the same shall apply).

On December 20, 2010, the unemployment recognition date of the Plaintiff was reported by attending the Seoul Regional Employment and Labor Agency, which was the unemployment recognition date, to have been making efforts for reemployment, and the fact that the Plaintiff did not report the fact that the Plaintiff provided his/her services on November 23, 2010 through December 16, 2010 during the period subject to unemployment recognition, from November 23, 2010 to December 20, 2010, and on December 20, 2010, the fact that the Plaintiff did not report the fact that the Plaintiff provided his/her services on December 20, 2010 is as seen earlier. As such, the amount of additional collection against the Plaintiff regarding the period subject to unemployment recognition shall be KRW 828,570, the amount of job-seeking benefits paid for the period subject to unemployment recognition, and the amount of additional collection shall be KRW 739,790,790 (=828,570 x 25 days) of job- paid for the period of employment.

On January 17, 201, the unemployment recognition date of the Plaintiff reported that he/she had been present at the Seoul Regional Employment and Labor Agency and has been seeking reemployment, and that he/she has not reported the fact that he/she has provided his/her labor to the Mediation Agency during the period from December 21, 2010 to January 17, 2011, which is the period subject to unemployment recognition, during which he/she had been employed. Thus, the amount to be returned to the Plaintiff during the period subject to unemployment recognition shall be KRW 828,570 of the amount of job-seeking benefits paid for the period subject to unemployment recognition, and the amount to be additionally collected shall be KRW 828,570 of the amount of job-seeking benefits paid for the period subject to unemployment recognition (=828,570 of the amount of job-seeking benefits paid for the period subject to unemployment recognition x 28 days on December 21, 2011).

4) Accordingly, the amount to be returned to the Plaintiff is 2,485,710 won (=828,570 won + 828,570 won + 828,570 won + 828,570 won). The amount to be additionally collected is 1,745,910 won (=17,550 won + 739,790 won + 828,570 won). Thus, the Plaintiff’s assertion that the amount to be collected to the Plaintiff should be identical to the amount to be collected to the Plaintiff is without merit.

5) However, the amount of imposition against the Plaintiff is the sum of KRW 4,231,620 (=2,485,710 + the additionally collected amount of KRW 1,745,910). However, the head of Seoul Regional Employment and Labor Administration erred by calculating the additionally collected amount of KRW 1,775,510 (i.e., the Plaintiff’s period subject to recognition of unemployment, KRW 11,23 through December 20, 201, KRW 25 days (i.e., the number of days during which labor was provided during the period from November 23, 2010 to KRW 25, KRW 2710, KRW 275, KRW 270 from December 16, 2010 to KRW 275, KRW 2710 from December 27, 2010 to KRW 265, KRW 2710 from the above amount subject to additional collection).

(B) Whether to succeed to defects

According to Article 106 of the former Employment Insurance Act, Articles 27 through 30, 32, 39, 41, and 42 of the Act on the Collection of Insurance Premiums, etc. for Employment Insurance and Industrial Accident Compensation Insurance (hereinafter referred to as the "Insurance Premium Collection Act") shall apply mutatis mutandis to the collection of insurance premiums, etc. under the above Act. Where the Service or the Health Insurance Corporation collects insurance premiums or other money collectable under this Act, it shall notify the person liable for payment in writing of the amount and the due date for payment, and where the insured fails to pay the insurance premiums or other money collectable under this Act by the due date, the Health Insurance Corporation shall urge the person liable for payment to pay the amount within the due date, and where the person liable for payment fails to pay the insurance premiums or other money collectable under this Act by the due date, it may collect them in the same manner as delinquent national taxes are collected with approval of the Minister of Employment and Labor.

Therefore, in the imposition disposition of collection, the prior disposition of this case constitutes the disposition of this case as a reminder, and each of the above dispositions is independent as a separate administrative disposition, so even if there is a defect in the prior disposition of this case, it cannot be deemed that the prior disposition of this case was unlawful unless the prior disposition of this case is revoked, but it is among the prior disposition of this case.

In a case where it is null and void due to an obvious defect, the instant disposition for the execution of the preceding disposition in this case shall also be deemed null and void (see Supreme Court Decision 87Nu383, Sept. 22, 1987).

In light of the fact that the defect of the prior disposition in the prior disposition in this case is only 29,600 won, it cannot be deemed that the defect of the prior disposition in the prior disposition in this case is serious and obvious. Thus, it cannot be deemed that the defect of the prior disposition in the prior disposition in this case succeeded to the disposition in this case and thus the disposition in this case is unlawful.

Therefore, the plaintiff's assertion of succession to defects is without merit.

(2) As to the assertion of violation of the principle of trust protection

(A) In general in administrative legal relations, in order to apply the principle of protection of trust to an act of an administrative agency, first, the administrative agency should name the public opinion that is the object of trust to an individual, second, the administrative agency should not be attributable to the individual when the statement of opinion is justifiable and trusted. Third, the administrative agency should have conducted any act corresponding thereto, and third, the administrative agency should have conducted any act contrary to the above statement of opinion. Fourth, the administrative agency should make a disposition contrary to the above statement of opinion against the interests of the individual who trusted the above statement of opinion. Lastly, when taking an administrative disposition in accordance with the above statement of opinion, it should not be likely to seriously undermine the public interest or legitimate interests of a third party (see Supreme Court Decision 2004Du46, Jun. 9, 2006).

(B) As alleged by the Plaintiff, even though the public official belonging to the Seoul Regional Employment and Labor Office stated on March 201, 201, that the Plaintiff’s motherB “to receive and process an objection upon receipt of an objection,” it cannot be deemed that the Defendant issued a public opinion expressing that only an amount equivalent to KRW 1,745,920, which was charged as a criminal charge in violation of the Employment Insurance Act, should be imposed on the Plaintiff or a disposition for arrears equivalent to the above amount. Therefore, without further review, the Plaintiff’s assertion on the remainder is without merit.

(3) Sub-decisions

Therefore, the plaintiff's assertion is without merit, and the disposition of this case is legitimate.

3. Conclusion

Thus, the plaintiff's claim is dismissed as it is without merit.